Ingbretson v. Commissioner of Social Security Administration

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
James N Ingbretson,
Plaintiff,
v.
Commissioner of Social Security
Administration,
Defendant.
No. CV-25-00522-TUC-RM (MSA)
REPORT AND
RECOMMENDATION
Plaintiff James Ingbretson seeks judicial review of an unfavorable decision issued
by the Commissioner of Social Security Administration. For the following reasons, the
Court will recommend that the Commissioner’s decision be affirmed.
Background
Plaintiff is 55 years old. (See AR 304.) He has a college education. (AR 386.) He
worked as a fitness trainer until 2019 and then as a construction superintendent until 2021.
(AR 376.) He allegedly stopped working because of his medical conditions. (AR 363.)
In 2022, Plaintiff applied for disability insurance benefits and supplemental security
income, alleging that he was disabled because of degenerative disc disease, osteoarthritis,
major depressive disorder, and generalized anxiety disorder. (AR 304, 310, 363.) His
applications were denied initially and on reconsideration. (AR 121–22, 143–44.) He
requested a hearing before an administrative law judge (ALJ), and hearings were held in
April and July 2024. (AR 39, 55.)
After the hearing, the ALJ issued a written decision following the five-step process
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for determining whether a person is disabled. See 20 C.F.R. §§ 404.1520, 416.920.1 At step
one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since his
alleged onset date. (AR 19.) At step two, the ALJ found that Plaintiff had two severe
impairments: right patellar rupture with septic arthritis, and obesity. (AR 20.) Important to
this case, the ALJ found that Plaintiff’s mental impairments individually and collectively
were nonsevere. (AR 21–22.) At step three, the ALJ found that Plaintiff did not have an
impairment or a combination of impairments that met or medically equaled the severity of
a listed impairment. (AR 22.) Between steps three and four, the ALJ found that Plaintiff
had the residual functional capacity to perform light work with certain exertional and
environmental restrictions. (AR 22.) At step four, the ALJ found that Plaintiff had no past
relevant work. (AR 29.) At step five, the ALJ found that Plaintiff could adjust to work that
existed in sufficient numbers in the national economy. (AR 29.) Accordingly, the ALJ
concluded that Plaintiff was not disabled. (AR 30–31.)
The Appeals Council denied review, making the ALJ’s decision the final decision
of the Commissioner. (AR 1.) This lawsuit followed. (Doc. 1.)
Legal Standard
The Commissioner’s decision will be affirmed if it is supported by substantial
evidence and free of legal error. Wischmann v. Kijakazi, 68 F.4th 498, 504 (9th Cir. 2023)
(citing Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1161–62 (9th Cir. 2012)).
“Substantial evidence means more than a mere scintilla, but less than a preponderance; it
is such relevant evidence as a reasonable person might accept as adequate to support a
conclusion.” Glanden v. Kijakazi, 86 F.4th 838, 843 (9th Cir. 2023) (quoting Lingenfelter
v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)).
Discussion
Plaintiff argues that the ALJ erred in finding, contrary to three medical opinions,
that he does not have a severe mental impairment. As discussed below, the Court disagrees.
1 As relevant to this case, there is no material difference between the regulations for
disability insurance benefits and supplemental security income. As such, for convenience,
subsequent citations will be only to the disability insurance regulations.
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I. Medical Opinion Evidence
The ALJ must determine the persuasiveness of each medical opinion based on the
factors of supportability and consistency. 20 C.F.R. § 404.1520c(b)(2). The supportability
factor focuses on whether the medical source has offered “relevant . . . objective medical
evidence and supporting explanations” in support of her opinion. Id. § 404.1520c(c)(1).
The consistency factor focuses on whether the medical source’s opinion is consistent “with
the evidence from other medical sources and nonmedical sources in the claim.” Id.
§ 404.1520c(c)(2).
A. Dr. Belton
The first opinion at issue was offered in November 2022 by Dr. Belton, a consulting
psychologist. During that exam, Plaintiff reported that he was not taking any psychotropic
medications. (AR 985.) He reported that he had “documented” posttraumatic stress
disorder and anxiety stemming from childhood abuse, that he would “revert back in [his]
mind” to the abuse, and that his childhood had led him to self-medicate with alcohol as an
adult. (AR 986.) He further reported that he had “lost a lot of friends” due to isolative
behavior, and that he had “a recurring depressive” dating as far back as he could remember.
(AR 986.) Finally, he reported that he had the “capacity to engage in daily life tasks
independently,” and he “did not present with concern related to basic comprehension
skills.” (AR 987.)
Dr. Belton administered a modified Mini-Mental Status Examination (MMSE) and
made numerous clinical observations. (AR 987–88.) Plaintiff scored 28 out of 28 on the
MMSE, reflecting average performance for his age and education level. (AR 987–88.) As
to Plaintiff’s behavior, Plaintiff “exhibited intermittent eye contact,” had to be frequently
prompted “to elaborate on his responses and offer additional details,” and had a “flat affect”
and “an indifferent, apathetic disposition.” (AR 987.) More positively, he was “considered
a reliable historian,” was “well-groomed and suitably dressed,” had no “word finding
difficulty,” and had “coherent, linear, and intact” thought process and “moderate” work
habits and response pace. (AR 987.)
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Dr. Belton diagnosed Plaintiff with posttraumatic stress disorder and opined that his
mental impairment would affect all four areas of his mental functioning. (AR 988–90.) As
to understanding and remembering, she opined that “increases” in Plaintiff’s “emotional
symptoms” would result in a diminished ability “to execute cognitive skills involving
comprehension of multi-step task directions and following a detailed list of instructions.”
(AR 990.) As to concentration and persistence, she opined that “[a]s [Plaintiff’s] symptoms
activate, he will struggle with maintaining concentration on novel situations and have
difficulty with paying attention.” (AR 990.) As to social interaction, she opined that “[w]ith
elevations in cortisol, [Plaintiff] will struggle to comply and follow up with supervisory
requests in a quick and efficient manner when the tasks are multi-faceted and complex.”
(AR 990.) Finally, as to adaptation to change, she opined that Plaintiff “will have difficulty
with responding quickly and efficiently to unpredictable situations.” (AR 990.)
The ALJ rejected Dr. Belton’s opinion as unpersuasive. As to supportability, the
ALJ found that “Dr. Belton’s opinion was scarcely supported by her own interview of the
claimant beyond repeating his subjective complaints and assuming how having
posttraumatic stress disorder might theoretically affect his mental capacity.” (AR 29.) An
ALJ may reject a medical opinion that is unsupported by the medical source’s examination
or treatment notes. Kitchen v. Kijakazi, 82 F.4th 732, 740 (9th Cir. 2023). Here, the ALJ
observed that Plaintiff “act[ed] somewhat evasively” during Dr. Belton’s exam, as shown
by his intermittent eye contact, flat affect, indifferent mood, and failure to elaborate unless
prompted. (AR 29, 987.) Still, the ALJ explained, Plaintiff “otherwise seemed to exhibit
normal behavior and intellectual functioning, especially as evidenced by his near-perfect
performance on a mini-mental status examination.” (AR 29.) In addition to his MMSE
score, Plaintiff had reliable memory, normal thought process, moderate work habits, and
moderate response pace. (AR 987.) Considering that Plaintiff exhibited “normal behavior
and intellectual functioning” even despite his irregular mood, the ALJ could rationally find
that Dr. Belton’s assessed limitations were not supported by her examination. See Kitchen,
82 F.4th at 740 (affirming the rejection of a doctor’s “assessment of severe limitations” as
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unsupported by the doctor’s “own unremarkable mental status examinations”).
An ALJ may also reject a medical opinion that is unduly reliant on a claimant’s
subjective complaints, so long as the ALJ has first properly discounted those complaints.
Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (quoting Tommasetti v. Astrue,
533 F.3d 1035, 1041 (9th Cir. 2008)). Here, the ALJ did not discount any specific
statements Plaintiff made about his mental health symptoms, but that was because he
offered none. While he listed major depressive disorder and generalized anxiety disorder
in his disability applications, he offered no testimony about his symptoms, either in an adult
function report or at his two administrative hearings. (AR 363; see Answering Br. 5–6.)
Since Plaintiff’s claim was based only superficially on mental health impairments, the ALJ
could rationally find that Dr. Belton’s opinion placed too much significance on Plaintiff’s
statements about mental health symptoms. See Bayliss v. Barnhart, 427 F.3d 1211, 1217
(9th Cir. 2005) (affirming the rejection of an opinion that “was not supported by clinical
evidence and was based on [the claimant’s] subjective complaints”).
As to consistency, the ALJ found that Dr. Belton’s opinion was “inconsistent with .
. . the claimant’s mental health treatment history (or, rather, his lack thereof).” (AR 29.)
The ALJ did not elaborate, but it is reasonable to infer that this statement incorporated the
ALJ’s earlier analysis of Plaintiff’s mental health impairments, both at step two and in
connection with the agency physicians’ opinions. See Smartt v. Kijakazi, 53 F.4th 489, 498
(9th Cir. 2022) (discerning the ALJ’s meaning by reading the ALJ’s decision in context as
a whole); Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989) (stating that a reviewing
court can make reasonable inferences about an ALJ’s rationale). The ALJ canvassed the
longitudinal record and found that Plaintiff had “grossly benign mental status examinations
but for mild mood disturbance” and that Plaintiff had at most “mild” limitations in each of
the four areas of mental functioning. (AR 21–22, 28.) The ALJ further found that Plaintiff
had largely failed to seek mental health treatment. (AR 22, 28.) As discussed below, these
findings are supported by substantial evidence. It follows that the ALJ could rationally find
that Dr. Belton’s opinion was inconsistent with the longitudinal record. See Woods v.
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Kijakazi, 32 F.4th 785, 792–93 (9th Cir. 2022) (affirming the rejection of an opinion as
“inconsistent with the overall treating notes and mental status exams in the record”); Nadon
v. Bisignano, 145 F.4th 1133, 1138 (9th Cir. 2025) (affirming the rejection of an opinion
that was inconsistent with the claimant’s history of “conservative treatment”).
The ALJ found that Plaintiff had no more than “mild” limitations in each area of
mental functioning. (AR 21–22.) As to understanding and remembering, the ALJ found
that Plaintiff’s “regular treatment history generally reflected him to have normal cognitive
functioning, including an intact capacity for recent and remote recall.” (AR 21 (citing
AR 1424 (normal recall in December 2021); AR 1060 (intact memory in August 2023)).)
As to concentration and persistence, the ALJ explained that Plaintiff had few if any
“complaints regarding difficulty concentrating” and “was noted to demonstrate an adequate
capacity for attention, normal thought content, and a linear thought process.” (AR 21
(citing AR 1172 (normal thought content in September 2021); AR 1424 (normal attention
in December 2021); AR 963 (linear thought process in June 2022); AR 1086 (same in
September 2022)).) As to social interaction, the ALJ found that while Plaintiff occasionally
had “a degree of mood disturbance—especially while seeking treatment for alcohol abuse
and detoxification—and/or a flat, indifferent affect,” he was most often observed to be
“cooperative and even distinctly pleasant, as well as to exhibit normal behavior, mood, and
affect.” (AR 21 (citing AR 586 (cooperative with normal mood and affect in September
2021); AR 963 (pleasant with normal emotion in June 2022); AR 1086 (same in September
2022); AR 1037 (cooperative in April 2023); AR 1148 (normal behavior in May 2023);
AR 1060 (cooperative in August 2023)).) Finally, as to adaptation to change, the ALJ
observed that Plaintiff “endorsed being able to perform activities of daily living without
complication from his psychological symptoms” and “most often exhibited normal
judgment and insight.” (AR 22 (citing AR 1172 (normal judgment in September 2021);
AR 1433 (mature judgment and good insight in December 2021)).)
The Court has reviewed the record and determined that the examples cited by the
ALJ are representative, such that the ALJ could rationally describe Plaintiff’s mental status
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examinations as “grossly benign” and Plaintiff’s limitations as “mild.” (See AR 1342
(normal mood in June 2021); AR 937 (normal mood and affect in July 2021); AR 1172
(normal behavior, thought content, and judgment in September 2021); AR 625 (appropriate
mood and affect in October 2021); AR 1424, 1433 (good insight and judgment
notwithstanding depressed mood and affect in December 2021); AR 1164 (normal behavior
and mood in January 2022); AR 1086 (pleasant, linear thought process, and normal
emotion in September 2022); AR 1148 (normal behavior in May 2023); AR 1060
(cooperative, alert, and intact memory in August 2023).) Further, the ALJ is correct that
Plaintiff’s treatment was effectively limited to inpatient alcohol abuse treatment and short-
term medication use, and that Plaintiff denied a referral for psychiatric treatment. (See
AR 1370–1452 (treatment at Arizona Rehab Campus in January and December 2021);
AR 964 (declining a psych referral in June 2022 because he thought his symptoms were a
hormonal issue); AR 985 (not on medications in November 2022, despite being prescribed
an antidepressant in June 2022).) Again, the ALJ could rationally find that Dr. Belton’s
opinion was inconsistent with this record.
The ALJ further found that Dr. Belton’s opinion was inconsistent with Plaintiff’s
“own statements to her, in which he indicated being capable of performing activities of
daily living and did not raise any concerns related to basic comprehension skills.” (AR 29.)
This was rational, as there does appear to be an inconsistency, e.g., given Plaintiff’s lack
of concern with his comprehension skills, it is unclear why he would struggle with
comprehension of multi-step directions. (AR 987, 990.) Because it was rational, it should
be upheld.
The ALJ properly analyzed the supportability and consistency factors and rationally
concluded, under those factors, that Dr. Belton’s opinion was not persuasive.
B. Dr. McClain and Dr. Nathan
The next opinions were offered during Plaintiff’s administrative proceeding. At the
initial level, Dr. McClain found that Plaintiff had a severe mental impairment. (AR 87.) As
to the four areas of mental functioning, Dr. McClain opined that Plaintiff had no limitation
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in understanding, remembering, and applying information; a moderate limitation in
interacting with others; a moderate limitation in concentrating, persisting, and maintaining
pace; and a mild limitation in adapting and managing himself. (AR 87.) In support,
Dr. McClain cited to a 2022 diagnosis of major depressive disorder; several findings of
Dr. Belton; and Plaintiff’s self-report of isolative behavior to Dr. Belton. (AR 87–88.) At
the reconsideration level, Dr. Nathan agreed that Plaintiff had a severe mental impairment.
(AR 125.) Dr. Nathan opined that Plaintiff had a mild limitation in understanding,
remembering, and applying information; a moderate limitation in interacting with others;
a moderate limitation in concentrating, persisting, and maintaining pace; and a mild
limitation in adapting and managing himself. (AR 126.) In support, he cited Dr. Belton’s
examination and Dr. McClain’s determination at the initial level. (AR 126.)2
The ALJ found both opinions partially persuasive, presumably to the extent that
they endorsed “mild” limitations in certain areas of mental functioning. (AR 21–22, 28.) As
to supportability, the ALJ found that Dr. McClain and Dr. Nathan likely “relied too heavily
upon the ultimately unpersuasive opinion of this matter’s psychological consultative
examiner.” (AR 28.) As explained above, the ALJ’s rejection of Dr. Belton’s opinion is
supported by substantial evidence. It follows that the ALJ could reject Dr. McClain’s and
Dr. Nathan’s opinions as unpersuasive for relying on Dr. Belton’s opinion for support.
As to consistency, the ALJ found that Dr. McClain’s and Dr. Nathan’s opinions
were only “partially . . . consistent with [Plaintiff’s] longitudinal medical record in that the
evidence did not reflect more than minimal limitations in any domain of mental
functioning.” (AR 28.) Specifically, the ALJ found an inconsistency between the opinions
and Plaintiff’s “grossly benign mental status examinations” and negligible mental health
treatment. (AR 28.) As explained above, the ALJ’s evaluation of the longitudinal record is
supported by substantial evidence. The ALJ could rationally reject Dr. McClain’s and
Dr. Nathan’s opinions as inconsistent with that record.
. . . .
2 Dr. Nathan miscited the dates of Dr. Belton’s and Dr. McClain’s opinions, but his
references to the “Psy CE” and “initial” determination make his meaning clear. (AR 126.)
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II. Nonseverity Determination
The ALJ is required to follow a “special technique” when evaluating a claimant’s
mental impairments. 20 C.F.R. § 404.1520a(a). This involves rating the claimant’s degree
of limitation in the four areas of mental functioning discussed above: understanding,
remembering, or applying information; interacting with others; concentrating, persisting,
or maintaining pace; and adapting or managing oneself. Id. § 404.1520a(c)(3). The possible
ratings are none, mild, moderate, marked, and extreme. Id. § 404.1520a(c)(4). If the
claimant has no more than “mild” limitations in each area of functioning, the ALJ generally
will find that the claimant’s impairment is nonsevere. Id. § 404.1520a(d)(1). The ALJ’s
“written decision must incorporate the pertinent findings and conclusions based on the
technique.” Id. § 404.1520a(e)(4).
Here, as explained above, the ALJ evaluated the longitudinal record and rationally
found, based on Plaintiff’s grossly benign mental status examinations, failure to seek
mental health treatment, and ability to engage in his activities of daily living, that Plaintiff
had no more than mild limitations in each area of mental functioning. In addition, the ALJ
rationally rejected the contrary medical opinion evidence based on lack of support and
inconsistency with the record. These findings and conclusions are set forth in the ALJ’s
written decision. Given the foregoing, substantial evidence supports the ALJ’s
determination that Plaintiff lacked a severe mental impairment. See Chaudhry v. Astrue,
688 F.3d 661, 670 (9th Cir. 2012) (affirming the ALJ’s finding that the claimant lacked a
severe mental impairment where the ALJ “documented his application of the psychiatric
review technique,” including his reasons for rejecting medical opinion evidence).
III. Plaintiff’s Arguments
Plaintiff offers several undeveloped and unpersuasive allegations of error. He first
takes issue with the ALJ placing significance on his failure to seek mental health treatment.
(Opening Br. 7.) He asserts that a finding of nondisability “is warranted where the claimant
fails to follow prescribed treatment that is ‘expected to restore [his] ability to work’ absent
‘an acceptable reason for failure to follow prescribed treatment.’” (Id. (quoting 20 C.F.R.
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§ 404.1530).) Here, he says, no physician opined that mental health treatment would restore
his ability to work. (Id.) He further suggests that the ALJ failed her duty to develop the
record by not inquiring whether he had a good reason for not seeking treatment. (Id.)
These arguments miss the mark. Section 404.1530 “permit[s] the Commissioner to
deny benefits where the claimant meets the disability criteria but fails to obtain treatment
that would ameliorate his condition.” Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995).
The ALJ found that Plaintiff did not meet the disability criteria. (AR 30.) So, § 404.1530
is not implicated, and the ALJ did not run afoul of it. Instead, the ALJ found that Plaintiff’s
claim of disability was undermined in part by his failure to seek more than minimal mental
health treatment. This is acceptable reasoning, both as to symptom testimony and medical
opinion evidence. See Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) (symptom
testimony); Nadon, 145 F.4th at 1138 (medical opinion evidence).
Next, the ALJ’s duty to develop the record is triggered only “where the record
establishes ambiguity or inadequacy.” McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011)
(citing Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001)). The Court agrees with
the Commissioner that the duty was not triggered here. (Answering Br. 12–13.) The record
shows “grossly benign” mental status examinations, a lack of mental health treatment, and
an ability to “perform activities of daily living without complication from [Plaintiff’s]
psychological symptoms.” (AR 22, 28.) In addition, Plaintiff did not alert the ALJ to any
alleged mental health symptoms. This record is not ambiguous or inadequate; it supports
the ALJ’s rational conclusion that Plaintiff lacks a severe mental impairment. Indeed, while
Plaintiff faults the ALJ for not asking him about his lack of treatment, he does not indicate
what he would have said had the ALJ asked. Plaintiff may not use the ALJ’s duty to
develop the record to shift the burden of proving disability to the ALJ. Mayes v. Massanari,
276 F.3d 453, 459 (9th Cir. 2001).
Next, Plaintiff points out that the Ninth Circuit Court of Appeals has “criticized the
use of a lack of treatment to reject mental complaints both because mental illness is
notoriously underreported and because ‘it is a questionable practice to chastise one with a
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mental impairment for the exercise of poor judgment in seeking rehabilitation.’” (Opening
Br. 7 (quoting Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1299–1300
(9th Cir. 1999)); Reply Br. 4.) Plaintiff says that the record shows he had poor judgment,
as he failed to comply with his knee treatment, “stopped taking psychotropic medications,
refused a referral to a psychiatric provider, and failed to seek consistent mental health
treatment.” (Opening Br. at 7–8.)
While it is true that an ALJ must be careful when evaluating a claimant’s failure to
seek mental health treatment, an ALJ may, under appropriate circumstances, weigh such
failure against the claimant. Were it otherwise, any claimant could claim disabling mental
impairments and assert that the absence of treatment is a byproduct of the impairment. This
would make benefits “‘available for the asking, a result plainly contrary to’ the Social
Security Act.” Smartt, 53 F.4th at 499 (quoting Molina v. Astrue, 674 F.3d 1104, 1112
(9th Cir. 2012), superseded on other grounds by 20 C.F.R. § 404.1502(a)). As for Plaintiff
pointing to various poor choices he made regarding his treatment, there is “no medical
evidence” that those choices were “attributable to [his] mental impairment rather than [his]
own personal preference.” Molina, 674 F.3d at 1114. Thus, the choices do not undermine
the ALJ’s conclusions. See id. (affirming the ALJ’s rejection of the plaintiff’s anxiety
testimony where the plaintiff failed to seek psychiatric treatment and “there was no medical
evidence that [her] resistance was attributable to her mental impairment rather than her
own personal preference”); Garrison v. Colvin, 759 F.3d 995, 1018 n.24 (9th Cir. 2014)
(“[W]e do not punish the mentally ill for occasionally going off their medication when the
record affords compelling reason to view such departures from prescribed treatment as part
of claimants’ underlying mental afflictions.” (emphasis added)).
Next, Plaintiff argues that even if the ALJ could use his lack of treatment to discount
his (nonexistent) symptom testimony, lack of treatment is still “not a valid reason to reject
the medical opinions.” (Opening Br. 8; see Reply Br. 5.) He asserts that an ALJ’s “[r]easons
for rejecting a claimant’s testimony are not valid reasons to reject a medical opinion where
the opining doctor assumes that fact.” (Opening Br. 8.) But it is well-established that an
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ALJ may reject an opinion that is unduly reliant on a claimant’s subjective statements.
Ghanim, 763 F.3d at 1162 (quoting Tommasetti, 533 F.3d at 1041).3 Plaintiff points out
that “the rule allowing an ALJ to reject opinions based on self-reports does not apply in the
same manner to opinions regarding mental illness,” as psychiatry necessarily “depend[s]
in part on the patient’s self-report, as well as on the clinician’s observations of the patient.”
(Reply Br. 5–6 (quoting Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017)).) While
true, this does not mean that an ALJ may never reject a psychiatric opinion as unduly reliant
on a claimant’s self-reports. Here, given the ALJ’s analysis of the longitudinal record—an
analysis which Plaintiff does not seriously engage with—the ALJ’s finding was rational.
Plaintiff next argues that the “ALJ is simply not qualified to interpret raw medical
data in functional terms” and “may not substitute her own lay opinion for that of medical
professionals.” (Opening Br. 8 (citations omitted).) He does not identify where the ALJ
“interpret[ed] raw medical data.” And the ALJ did not rely on “her own lay opinion”; she
analyzed the opinion evidence using the factors of supportability and consistency. Plaintiff
also argues that Dr. Belton’s normal examination findings “do[] not detract from her
opinion” because “[w]axing and waning of symptoms is typical of mental illness.” (Reply
Br. 6 (citing Garrison, 759 F.3d at 1017).) As explained above, the ALJ rationally found
that Dr. Belton’s opinion was not supported by her examination or the record generally.
Plaintiff’s observation that symptoms can wax and wane does not affect that conclusion.
Indeed, he points to no evidence that his symptoms were known to wax and wane.
Conclusion
The Court recommends that the Commissioner’s decision be affirmed.
This recommendation is not immediately appealable to the United States Court of
Appeals for the Ninth Circuit. The parties have 14 days to file specific written objections
3 Ogin v. Colvin, 608 F. App’x 519 (9th Cir. 2015), which Plaintiff cites in support of
his argument, is not binding or on point. There, the claimant gave “lackluster effort” during
a consultative examination, and the ALJ discounted the consulting physician’s opinion for
that reason. Id. at 520. The court held that the claimant’s lack of effort was not a reason to
reject the opinion, as the physician expressly accounted for the lack of effort in formulating
the opinion. Id. The physician did not “assume” the truth of any “fact,” nor did the court
hold that an ALJ must adopt assumptions made by an opining physician. In short,
Plaintiff’s reading of Ogin is incorrect.
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with the district court. Fed. R. Civ. P. 72(b)(2). The parties have 14 days to file responses
to objections. Id. The parties may not file replies on objections absent the district court’s
permission. A failure to file timely objections may result in the waiver of de novo review.
United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). The Clerk of
Court is directed to terminate the referral of this matter. Filed objections should bear the
following case number: CV-25-00522-TUC-RM.
Dated this 5th day of March, 2026.
Case 4:25-cv-00522-RM Document 20 Filed 03/05/26 Page 13 of 13